If You’re a Felon and have been Charged with Possession of a Firearm in NC, Read this article:
Since 1995, the Felony Firearms Act in North Carolina has stated that it is illegal for a person who has ever been convicted of a felony anywhere in the U.S. to possess either a gun or any weapon that can cause mass death and destruction. If you are a felon and are charged and convicted of possession of a firearm, you will have another felony on your record and serve a lengthy time of incarceration.
Don’t waste any time after being charged in contacting a gun charge lawyer in Raleigh who has experience with North Carolina gun laws, like Sandman, Finn, & Fitzhugh. We have over 50 years of combined legal experience and fight on our clients’ behalf for both state and federal crimes. In this article, we discuss the specifics of who cannot possess a firearm, what the penalties are for possession when you are a felon, whether your right to own a firearm can ever be restored, and common criminal defense strategies.
What Is Considered a Firearm?
The Felony Firearms Act, General Statute 14-451.1, defines a firearm as the following:
- A weapon that can expel a projectile, including a starter gun
- A firearm muffler or silencer
This includes any weapon of mass death and destruction including:
- Any explosive or incendiary such as a bomb or grenade
- Any type of weapon other than a shotgun or a shotgun shell of a type that is specifically suitable for sporting purposes
- Any firearm that is capable of fully automatic fire
- Any combination of parts either designed or intended for use in converting a device into a weapon or weapon of mass death and destruction
An antique firearm is not a firearm as far as the statute defines it.
How Does the Felony Firearms Act Prohibit Firearm Possession by a Felon?
General Statute 14-415.1 states that it is “unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in custody, care, or control any firearm.” The law prohibits a person who has a felony conviction in North Carolina, another state, or under federal law from possessing a firearm. This is a lifetime prohibition. Exceptions are made if the prior felony conviction was for certain white-collar crimes, such as unfair trade practices, antitrust violations, and restraints of trade.
Penalties of Possession of a Firearm
If you are a previously convicted felon and in possession of a firearm, you are guilty of a Class G felony. Your conviction will be considered to be a second felony. You could be sentenced to imprisonment from 12 to 26 months. If you have other criminal convictions, depending on your criminal record, you can be sentenced up to 39 months imprisonment.
In addition to being a state charge, the charge can also be a federal one if the gun was possessed concerning controlled substance crimes such as making or selling drugs. Also, if the gun was possessed during an illegal drug transaction such as selling drugs. These cases will usually result in a mandatory minimum sentence of up to 10 years imprisonment.
Restoring the Right to Own a Firearm
The Felony Firearms Act in North Carolina provides a Restoration of Firearm Rights Law (N.C. General Statutes 14-415.4) that allows you to regain your right to buy, possess, and own a firearm in certain circumstances. In order to be considered for restoration, your single felony conviction cannot have been a Class A, B1, B2, or lower-class violent felony. Violent felonies involve assault as an essential element of the crime, use of a firearm or other deadly weapon, or required sex offender registration.
Other eligibility requirements include:
- Being a resident of North Carolina for at least one year
- Having not been convicted of certain misdemeanor(s) since the felony conviction
- Submitting your fingerprints to the county sheriff for a background check
This table in the UNC School of Government law resource database provides detailed information on eligibility to restore your gun rights. An experienced attorney will be able to inform you of your eligibility.
Defense Options for a Felon Charged with Firearm Possession
A defense attorney will use several options for your defense if charged with firearm possession as a felon.
Pretrial Criminal Defenses
An attorney will employ pretrial defenses to challenge the legality of the manner in which evidence against you was obtained as well as the sufficiency of the evidence used to charge you. Pretrial defenses are raised through either a Motion to Suppress or a Motion to Dismiss. Some of the most common pretrial defenses are:
- Illegal search and seizure
- Statute of limitations
- Warrantless stop
- Speedy trial violation
Criminal Trial Defenses
Defenses are put forth during the trial and attempt to either:
- Raise an affirmative defense, or
- Challenge the sufficiency of evidence
An affirmative defense is a defense in which you, the defendant, introduces evidence. If the evidence is credible, it will negate criminal liability. Common affirmative defenses include a plea of insanity, self-defense, mistake of fact, running the statute of limitations, and intoxication in some situations.
Challenging the sufficiency of evidence entails questioning whether there is enough information in the evidence in order to come to the conclusion. In other words, insufficient evidence fails to meet the burden of proof and is inadequate to prove a fact.
Common Defense Strategies
Momentary Possession Defense
With the momentary possession defense strategy, the defendant admits having a gun but states that the weapon was only in their possession for a brief moment in order to get rid of it. For this defense to be successful, it requires:
- Proof that the defendant only possessed the gun for a brief period
- Proof that the defendant only possessed the gun for the purpose of disposing it
- Proof that the defendant did not intend to prevent law enforcement from obtaining the gun
Illegal Search and Seizure Defense
Sometimes the felon is accused of possessing a gun after authorities find a weapon from a property seizure. However, police can only search or seize property if they have a lawful search warrant. When there is no warrant and a gun is found, then the defense can use it as a defense to bring a motion to suppress evidence. In this case, the case most likely will be dismissed.
Justifiable Possession Defense
Using a justifiable possession defense entails the defendant admitting to possessing the firearm but only due to a justifiable reason. Most of the time, a defendant will argue that they took the gun from someone committing a crime. Proof requires:
- Proving that the defendant took the firearm from someone who was committing a crime against them
- Proving that the defendant possessed the gun for an amount of time that was commensurate with delivering the gun to law enforcement
- Proving that the defendant gave prior notice to law enforcement that he/she would be delivering the gun
Contact Our Raleigh Criminal Defense Attorneys if You Are a Felon and Charged with Firearm Possession
If you are facing a firearm possession charge as a felon, you need to seek legal representation from an experienced criminal defense team like ours at Sandman, Finn & Fitzhugh. We have spent years fighting for people’s rights and can give your case the time and apply the knowledge required to develop a defense strategy for your situation. Our attorneys at Sandman, Finn & Fitzhugh are ready to help you. Call us at (919) 845-6688 or complete our free case review contact form